McGeorge School of Law

Proposition 54

Proposition 54:
Classification by Race, Ethnicity, Color or National Origin. Initiative Constitutional Amendment

By Saira Din

Copyright © 2003 by University of the McGeorge School of Law

JD, McGeorge School of Law, University of the Pacific
to be conferred December 2004
M.S.W., Masters of Social Work, University of Michigan at Ann Arbor, 1995
B.A., Psychology, University of California at Irvine, 1992

Table of Contents

I. Executive Summary
II. The Law
III. Changes Proposed by RPI
IV. Drafting Issues
V. Constitutional Analysis
VI. Public Policy Considerations

VII. Conclusion

I. Executive Summary

The Racial Privacy Initiative [hereinafter RPI] is a proposed amendment to the California Constitution. The RPI prohibits state and local governments from classifying individuals by race, ethnicity, color or national origin for the specific purposes of public education, public contracting, and public employment. Legislative Analyst's Office, Analysis of RPI (last accessed Sept. 2, 2003). This prohibition will also apply broadly to all state operations. Id. The legislature can, however, determine a compelling state interest and approve the need for a classification by a two-thirds majority in both houses. Id. The Governor's signature is also required in approving the collection of the statistical data. Id.

The RPI has several exemptions including the California Department of Fair Employment and Housing [hereinafter DFEH] which lasts for ten years with respect to DFEH conducted classifications in place as of March 5, 2002; medical research and treatment; law enforcement; court orders and consent decrees; and others for specified compelling circumstances. Id. The RPI requires racial check-off boxes to be phased out of state and local government forms by January 1, 2005, unless one of the above exemptions applies. Id.

Proponents of the RPI claim that asking citizens to check a race box is demeaning. Top 5 Reasons To Vote For RPI (May 21, 2002) (on file with Cal. Initiative Review, McGeorge School of Law). Furthermore, check boxes divide people and force Americans to pay more attention to characteristics such as skin color and ancestry. Id. Opponents of the RPI claim the initiative will wipe out all information about diseases and infant mortality rates among certain racial groups. National Lawyers Guild, San Francisco Bay Area Chapter, Stop Ward Connerly's "Racial Privacy Initiative" (last accessed Sept. 22, 2003). Furthermore, opponents believe the RPI will keep racial inequalities private making it nearly impossible to enforce anti-discrimination laws. Id. Opponents additionally claim that data collection on race should be improved, not eliminated, in order to improve the general health, beliefs and practices of California's diverse population. Id.

In November 1996, Proposition 209 appeared on the California Ballot and was approved by California voters. Proposition 209 created section 31 of the California Constitution article I, Declaration of Rights [hereinafter section 31]. Section 31 eliminated state and local government affirmative action programs in the areas of public employment, public education, and public contracting to the extent these programs involved "preferential treatment" based on race, sex, color, ethnicity, or national origin. Legislative Analyst's Office, Proposition 209 (last accessed Sept. 2, 2003). The specific programs affected by section 31 depend on factors such as (1) court rulings on what types of activities are considered "preferential treatment" and (2) whether federal law requires the continuation of certain programs. Id. Section 31 provides exceptions to the ban on preferential treatment when necessary for the following reasons: To keep the state and local governments eligible to receive money from the federal government; to comply with a court order; to comply with federal law or the United States Constitution; and to meet privacy and other considerations based on sex that are reasonably necessary to the normal operation of public employment, public education or public contracting. Id.

The RPI enhances section 31 in that it expressly prohibits state and local governments from collecting data on a person's race, ethnicity, color, or national origin for the purposes of public employment, education and contracting. Furthermore, proponents contend the RPI is needed because preventing government from classifying people by race is the next logical step and an important key to implementing section 31. Editorial, Undermining Identity Politics (May 23, 2002) (on file with Cal. Initiative Review, McGeorge School of Law).

The RPI does not appear to contain any significant constitutional or drafting issues. However, section 31 of the California Constitution article I, which was passed in 1996 and has been upheld in California, was also introduced in Florida as the Florida Civil Rights Initiative [hereinafter FCRI]. Howard Troxler, Courts Ruling Strained and Intellectually Dishonest (July 25, 2002) (on file with Cal. Initiative Review, McGeorge School of Law). The FCRI was subsequently overruled by the Florida Supreme Court because it did not satisfy Florida's requirements of the single subject rule and the title and summary were not clearly written. Id. The Florida court held that the initiative used the word "people" in some places and "persons" in other places. In addition, the Florida court held that the title stated the amendment would "end" preferential treatment which created an implication that the government was presently practicing discrimination. Id. Given that the RPI enhances section 31 of the California Constitution article I, the single subject rule and terminology of the RPI will also be analyzed. Id.

II. The Law

A. Existing Law

State and local governments currently collect race-related data for personnel and programmatic purposes. Legislative Analyst's Office, Analysis of RPI (last accessed Sept. 2, 2003). Typically, the federal government requires the information to confirm compliance with nondiscrimination laws, (primarily equal employment opportunity laws), and as conditions of receiving federal funds (for example, education and Medi-Cal). Id.

1. Proposition 209

a. Background

Proposition 209 appeared on the November 1996 Ballot and was spearheaded by Ward Connerly, who is also Chair of the RPI's sponsoring committee, the American Civil Rights Coalition [hereinafter ACRC]. Proposition 209 was approved by California voters in November 1996 and created section 31 in the California Constitution article I, Declaration of Rights [hereinafter section 31]. Section 31 prohibits discrimination against, or preferential treatment for any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting. Cal. Const. art. I. § 31. Section 31 does not expressly eliminate identification by classification on government forms, which is the prime objective of the RPI.

b. Effects of Proposition 209

Proposition 209 amended the California Constitution by creating section 31 to article I of the Declaration of Rights. Section 31 focuses on three areas: (1) public employment and contracting;(2) public schools and community colleges; and (3) the University of California and California State University. Cal. Const. art. I. § 31.

1. Public Employment and Contracting

Section 31 eliminated affirmative action programs used to increase hiring and promotion opportunities for state or local government jobs where sex, race, or ethnicity are preferential factors in hiring, promotion, training, or recruitment decisions. Legislative Analyst's Office, Proposition 209 (last accessed Sept. 2, 2003). Section 31 also eliminated programs that gave preference to minority-owned or women-owned companies on public contracts. Id. The prohibitions do not apply to those government agencies that receive money under federal programs that require affirmative action. Id.

2. Public Schools and Community Colleges

Section 31 affected funding for public schools (kindergarten through grade 12) and community college programs by eliminating or causing fundamental changes to voluntary desegregation programs run by school districts. Id. Examples of desegregation spending include the special funding given to (1) "magnet" schools (where race or ethnicities are preferential factors in the admission of students to the school) and (2) designated "racially isolated minority schools" located in areas with high proportions of racial or ethnic minorities. Id. Furthermore, section 31 also affected cases where programs such as counseling, tutoring, outreach and financial aid provide preferences to individuals based on race, sex, ethnicity or national origin. Id.

3. University of California and California State University

Section 31 affected admissions at the state's public universities. The Regents of the University of California [hereinafter UC] had already changed the UC's admissions policies in 1995, effective for the 1997-98 academic year, to eliminate all consideration of race or ethnicity. Id. Now, the California State University [hereinafter CSU] can no longer use race and ethnicity as factors in its admission decisions based upon section 31. Id. Both university systems also previously administered assistance programs for students, faculty, and staff specifically for individuals based upon sex, race, or ethnicity. Id. These programs included outreach, counseling, tutoring, and financial aid, which were all affected due to section 31. Id.

Section 31 provides exemptions to keep state or local governments eligible to receive money from the federal government, comply with a court order already in force, comply with federal law or the U.S. Constitution, and to meet privacy and other considerations based on sex that are reasonably necessary to the normal operation of public employment, public education, or public contracting. Id.

c. Court Challenges to Section 31

Section 31 has been upheld by California courts despite challenges based on the federal and state equal protection clauses. See Hi-Voltage Wire Works v. City of San Jose, 24 Cal. 4th 537, 538 (2000) [hereinafter Hi-Voltage Wire Works]. In Hi-Voltage Wire Works, a city program that required contractors bidding on city projects to utilize a percentage of minority and women subcontractors, or to document efforts to include them in their bids, was found to violate section 31. Id. The court stated, "Regarding racial classifications, the only constitutional equal protection obligation is the affirmative duty to desegregate, also referred to as the duty to 'disestablish' the results of intentional discrimination; where the state or a political subdivision has intentionally discriminated, use of a race-conscious or race-specific remedy necessarily follows as the only, or at least the most likely, means of rectifying the resulting injury." Id. Furthermore, courts have held that section 31 does not conflict with Titles VI, VII, or IX of the Civil Rights Act of 1964. Coalition for Economic Equity v. Wilson, 122 F.3d 692, 709-718 (9th Cir. 1997) [hereinafter Coalition II]. The mere fact that affirmative action is permissible under Title VI and IX regulations, and some judicial interpretations of those statutes, does not require preemption of a state law that prohibits affirmative action. Coalition for Economic Equity v. Wilson, 946 F. Supp. 1480, 1518 (N.D. Cal. 1996) [hereinafter Coalition I].

III. Changes Proposed by RPI

A. Summary of Changes Proposed

The RPI is an express prohibition against state and local governments collecting data on a person's race, ethnicity, color or national origin in the areas of public education, public contracting, and public employment. Legislative Analyst's Office, Analysis of RPI (last accessed Sept. 2, 2003). As a result of section 31, preferential treatment based on these criteria is banned in California. Cal. Const. art. I. § 31. According to Kevin Nguyen, ACRC's Executive Director, although section 31 is current law in California, twenty-five percent of jurisdictions have not complied with the law. Telephone Interview with Kevin Nguyen, Executive Director of ACRC (June 7, 2002). The RPI would ensure compliance because it expressly prohibits collecting data on a person's race, ethnicity, color, or national origin. Id.

The prohibition will also apply to state and local government operations generally, unless the Legislature passes by a two-thirds majority vote and the Governor signs legislation approving the collection of such data to fulfill a compelling state interest. Legislative Analyst's Office, Analysis of RPI (last accessed Sept. 2, 2003). The RPI includes an exemption for the Department of Fair Employment and Housing [hereinafter DFEH] for ten years to ensure compliance with and investigations of violations of state civil rights laws governing employment, housing, public accommodations, and hate crimes. Id. DFEH requires data on race and ethnicity to investigate alleged violations of civil rights law and to build evidence of a pattern of discrimination. Id. Furthermore, the RPI has exemptions related to certain law enforcement activities, such as assignment of prisoners in specific locations based on race to avoid the potential for violence between prisoners. Id. In addition, the RPI exempts court orders and consent decrees, and federal law or eligibility for any federal program requirements where ineligibility would result in a loss of federal funds to the state. The measure will take effect January 1, 2005. Id.

B. The Text of RPI

Effective January 1, 2005, the RPI prohibits state and local governments from using race, ethnicity, color or national origin to classify current or prospective students, contractors, or employees in public education, contracting or employment operations. The Racial Privacy Initiative: A reader's guide (May 21, 2002) (on file with Cal. Initiative Review, McGeorge School of Law). The RPI does not prohibit classification by sex. The prohibition also covers persons subject to other programs run by the state unless the legislature finds compelling state interest, authorizes by two-thirds of each house, and the Governor approves a statute creating an additional exemption. Id. Other operations of government are defined by the RPI as all other programs run by the state. "Classifying is defined as separating, sorting, or organizing persons or personal data. Exemptions include: law enforcement descriptions; prisoner and undercover assignments; action taken to maintain federal funding." Initiative 933. Classification by Race, Ethnicity, Color or National Origin. Initiative Constitutional Amendment (last accessed Sept. 2, 2003).

1. Operative Clauses

The RPI will create section 32 in the California Constitution article I, Declaration of Rights. Paragraph (a) states: "The state shall not classify any individual by race, ethnicity, color, or national origin in the operation of public education, public contracting or public employment." Paragraph (a) will emulate article I, section 31 which prohibits racial preferences, and is additionally an express prohibition of classification. The Racial Privacy Initiative: A reader's guide (May 21, 2002) (on file with Cal. Initiative Review, McGeorge School of Law).

Paragraph (b) states: "The state shall not classify any individual by race, ethnicity, color or national origin in the operation of any other state operations unless the legislature specifically identifies that said classification fulfills a compelling state interest, and approves said classification by a 2/3 majority in both houses of the legislature, and is subsequently approved by the Governor." Id. Paragraph (b) pertains to all other programs run by the state and allows for narrowly defined exemptions to the general rule. Id. Paragraph (b) prohibits the state from classifying an individual by race, color, ethnicity or national origin. Id. However, unlike paragraph (a), which focuses on public education, contracting and employment, paragraph (b) applies broadly to all state operations. Id. In addition, paragraph (b) allows the legislature and Governor to exempt specific race classifications from its ban. Id. The exemption requires an agreement of two-thirds of both the Senate and Assembly before the exemption can be sent to the Governor for approval. Id. The exemption must also identify the compelling governmental interest the race classification serves before it can be approved. Id.

Paragraph (c) defines "classifying" as the act of separating, sorting or organizing by race, ethnicity, color or national origin including inquiring, profiling, or collecting data on government forms. Paragraph (c) also makes it clear the RPI will prohibit racial profiling for the first time in the state constitution. Id.

Paragraph (d) defines "individual" as "persons subject to all state operations" not covered by paragraph (a), which includes public education, contracting or employment. Id.

2. California's Civil Rights Laws

Paragraph (e) creates an exemption for DFEH, which investigates and prosecutes violations of California's civil rights laws. Id. To ensure that California does not have to wait for legislative approval of the classifications DFEH may need, the RPI exempts DFEH. Id. The exemption does not however, allow DFEH to assign a race to a person declining to classify him or herself by race. Id. This exemption will expire ten years after the effective date of the measure, allowing the state time to review which classifications the federal government mandates and also create changes to state forms in a phase-out period so taxpayers do not have to finance the overnight replacement of questionnaires. Id. In the event that California continues to require racial classifications to enforce the state's civil rights laws after the ten year exemption, the RPI allows the legislature to extend the DFEH exemption with a two-thirds majority in both houses and approval by the Governor. Id.

3. Public Health

Paragraph (f) is an exemption which covers medical research and treatment. Id. The RPI will allow continuance of medical research and treatment conducted to identify and treat diseases that afflict one racial group more than others. Id. Experiments that request volunteers of a certain racial background will be allowed to continue. Id. Private medical records that identify a patient's history and risk factors will also include race classifications. Id.

4. Law Enforcement

Paragraph (g) is an exemption for law enforcement officers and allows officers in the course of their duties to "describe particular persons in otherwise lawful ways." Id. This paragraph emphasizes that officers must reach a balance between public and officer safety and racial profiling. Id. Since prohibiting officers from using all lawful descriptive terms will increase the risk to officers and the public, "otherwise lawful ways" refers to the Supreme Court guidelines identifying when law enforcement officers may consider race or ethnicity. Id. The Fourth Amendment of the U.S. Constitution prevents law enforcement from relying solely on racial or ethnic appearance. Id. The Fourth Amendment requires officers to explain the particular factors in light of the total circumstances and their experience which led them to suspect that the person has committed, or is about to commit, a crime. U.S. Const. amend. IV.

The RPI supports efforts to identify and end the practice of racial profiling by allowing the continuance of data collection. The Racial Privacy Initiative: A reader's guide (May 21, 2002) (on file with Cal. Initiative Review, McGeorge School of Law). However, since the costs of data collection can be high, the RPI allows local law enforcement agencies to continue the data collection if they choose to bear the costs. Id. The RPI does not however, require the data collection. Id. For example, agencies such as the California Highway Patrol and police departments in Sacramento, San Francisco and San Jose have voluntarily adopted data collection programs on race. Id. These programs have led to a wide-range of disagreements between agencies and the public focusing on whether a racial profiling problem exists at all and if so, how to address the issue. Id.

Paragraph (h) is similar to paragraph (g) in that it allows officers to take race into account when assigning prisoners and in assigning officers to undercover duty, on the condition that officers abide by court and legal decisions in considering race. Id. This allows prison officers to segregate inmates based on race in order to reduce violence. Id. Paragraph (h) further allows consideration of race when assigning officers to undercover duty if they continue to follow existing legal guidelines, such as looking at particular factors in light of the circumstances. Id.

5. Federal Government

Paragraph (i) ensures that Californians will not lose federal tax dollars and that California can continue to assist the federal government in enforcing federal civil rights laws. Id. This section allows the state to maintain race classifications where classifications are necessary to continue receiving federal funds. Id. However, if a majority of California forms are linked to federal requirements, this exemption may inadvertently circumvent the RPI. Id.

6. Consent Decrees and Court Orders

Paragraph (j) exempts race classifications mandated by a valid decree or court order if they are in force when the RPI takes effect on January 1, 2005. Id.
Paragraph (k) defines "state" broadly to include all agencies of the state as well as local governments. Id.

7. The RPI's effective date

Paragraph (l) provides the RPI's effective date as January 1, 2005, allowing time for preparation and transition of new government forms. Id.

8. Severability

Paragraph (m) makes the RPI severable if the courts find any sections violate federal law or the Constitution. The offending part will be severed and the remainder of the RPI will remain operative. Id.

9. Fiscal Summary

According to the Legislative Analyst's Office, which determines a cost benefit analysis for the state, a majority of race-related information could continue to be collected. Legislative Analyst's Office, Proposition 54 (last accessed Sept. 5, 2003). In cases where data can no longer be collected, state and local governments could experience a one-time minimal cost to modify forms. Id. In addition, a minor savings could also be experienced due to the reduced collection of race related information. Id. In summary, there would not be a significant fiscal impact on state and local governments. Id.

IV. Drafting Issues

A. Vague Terminology

The RPI does not appear to contain any significant drafting issues. However, some of the terminology may be difficult for a number of voters to understand. For example, the exemptions concerning medical research and law enforcement may be confusing because voters may not understand which circumstances allow for data collection. Data collection is permitted for medical research and to track illnesses which are dominant in certain races. Id. Additionally, mandated data collection for law enforcement is prohibited, yet the possibility of such collection is not excluded if agencies wish to bear the costs. Id. Additionally, voters may read the terminology of the RPI quickly and not understand the essential meaning of the text. However, voters are assumed to have a basic understanding of the English language and a constitutional amendment should be construed in accordance with the natural and ordinary meaning of its words. Amador Valley Joint Union High Sch. Dist. v. State Bd. Of Equalization, 22 Cal. 3d 208, 245 (1978) [hereinafter Amador Valley].

B. Why create section 32 of the California Constitution article I, Declaration of Rights instead of amending section 31?

The RPI follows section 31 of the California Constitution article I, Declaration of Rights in that it will be an express prohibition in the areas of public education, public contracting, and public employment, which are banned as a result of section 31 of the California Constitution. Although section 31 uses the term "discriminate," creation of section 32 by passage of the RPI would use the term "classify," requiring stricter enforcement of section 31. The term "classify" will be subject to stricter enforcement because data about race will not be collected and individuals would therefore not be classified. In comparison, the term "discriminate" does not expressly impose any restrictions on preferential treatment and subsequently, allows continuance of data collection and classifications. Therefore, usage of the term "classify" in the RPI will be easier to enforce because data about race will not have been collected.

1. Amendment vs. Revision of State Constitution

The California Constitution allows voters to make amendments to the Constitution. Cal. Const. art. II § 8. It does not however, allow voters to make revisions to the Constitution. Amador Valley, 22 Cal. 3d at 223. In determining whether an initiative is a constitutional revision or an amendment, the California Supreme Court has analyzed both the quantitative and qualitative effect of an initiative. Raven v. Deukmejian, 52 Cal. 3d 336, 351-352 (1990) [hereinafter Raven]. In Raven, the quantitative test was defined as to "change directly the 'substantial entirety' of the Constitution by deletion or alteration of numerous existing provisions [which] may well constitute a revision thereof." Id. at 351. In addition, Raven included a qualitative effect which "may accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision." Id. at 351-352. Consequently, where the effect of the change is substantial, the court has found an initiative to be evidence of a revision. Id.

The RPI is introduced by its proponents as a Constitutional amendment. However, it could be argued that the RPI is a revision to the Constitution, because it meets the qualitative effect discussed in Raven. Currently, state and local governments are able to collect data on a person's race. In addition, article I, Declaration of Rights does not prohibit the practice of collecting data. The RPI could prohibit this practice and "accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision." Id. Nevertheless, the RPI does not have the requisite substantial impact, discussed in Raven, to be invalidated as a revision and would probably withstand such a challenge. Id. Proponents of the RPI intend the initiative to be an amendment because it was filed with the Secretary of State and introduced as a constitutional amendment. If however, the RPI is found to be a revision, it would be invalidated.

V. Constitutional Analysis

A. U.S. Constitution

The federal government requires race related information to ensure compliance with federal nondiscrimination laws and as a condition of receiving various federal funds. Pursuant to the exemptions of the RPI, the state and federal government will continue to collect this data as required. Legislative Analyst's Office, Analysis of RPI (last accessed Sept. 2, 2003). As noted earlier in Section IIc of this analysis (Court Challenges to Section 31), section 31 raises issues regarding the federal and state equal protection clauses as well as the Federal Civil Rights Act of 1964. The same issues can also be introduced with respect to the RPI.

Both before and following its passage in 1996, section 31 of the California Constitution was repeatedly challenged and upheld. Lungren v. Superior Court, 48 Cal. App. 4th 435 (1996) [hereinafter Lungren]. In Lungren, parties brought a pre-election challenge to the title and summary of section 31 prepared by the Attorney General. The parties alleged the title and summary were misleading because they failed to inform voters the initiative would ban all 'affirmative action.' Id. at 441. The challenge was rejected by the Court of Appeal because the title contained recitations of the operative terms of the measure and no words had been added or omitted. Id. The court in Lungren additionally noted that the term 'affirmative action' had no agreed-upon definition and that most definitions would include conduct which section 31 would prohibit, for example, discrimination and preferential treatment, and other efforts, such as outreach programs. Id. at 442.

It has also been found that section 31 does not violate federal equal protection. The court in Coalition II states, "[T]o hold that a democratically enacted affirmative action program is constitutionally permissible because the people have demonstrated a compelling state interest is hardly to hold that the program is constitutionally required. The Fourteenth Amendment, lest we lose sight of the forest for the trees, does not require what it barely permits." 122 F.3d at 709.

Federal courts have held section 31 does not conflict with Titles VI, VII and IX of the Civil Rights Act of 1964. Coalition I, 946 F. Supp. 1480; Coalition II, 122 F.3d 692. In Coalition I, the court asserted that affirmative action is permissible under the Civil Rights Act and does not require preemption of a state law that prohibits affirmative action. Coalition I, 946 F. Supp. at 1518.

Another issue which may be found unconstitutional is the DFEH ten year exemption. The exemption allows the legislature to extend the exemption further if California continues to require racial classification to enforce the states civil rights law. The legislature cannot grant an amendment to the Constitution. This raises the issue of whether the DFEH extension can be found to be unconstitutional due to the prohibition against amendments by the legislature. The fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution. INS v. Chadha, 462 U.S. 919, 944 (1982) [hereinafter Chadha]. In Chadha, an immigrant was lawfully admitted to the US on a student visa. Upon his visa expiring, Chadha was required to show cause as to why he should not be deported for extending his stay in the US. The Supreme Court held the section of the INS Act authorizing one House of Congress to invalidate the decision of the Executive Branch allowing the immigrant to remain in the United States was unconstitutional, because action by the House was legislative and subject to the constitutional requirements of passage by a majority of both houses and presentation to the president. Id. at 921.

Additionally, a provision is presumed severable if what remains after severance is fully operative as law. Id. If the DFEH extension is found to be unconstitutional, the RPI contains a severance clause, allowing any unconstitutional paragraphs to be severed from the constitutional paragraphs. The Racial Privacy Initiative: A reader's guide (May 21, 2002) (on file with Cal. Initiative Review, McGeorge School of Law). The DFEH exemption is therefore functionally and volitionally severable and allows the remainder of the RPI to be fully operative.

Finally, under the Supremacy Clause of the Constitution, federal law must be followed where there is conflicting state law. A conflict is found either where compliance with both federal and state law is impossible or where state law is an obstacle to implementation of the full purpose and objectives of Congress. The Supremacy Clause and terms of section 31 assert that federal law prevails in cases where there is a violation of federal constitutional or state law. Hi-Voltage Wire Works, 24 Cal. 4th at 569. Therefore, if the RPI is found to violate federal law, it could be found invalid based upon the Supremacy Clause.

B. California Constitution

1. Single Subject Rule

The RPI does not appear to contain any significant state constitutional violations. However, as previously discussed, the RPI enhances California Constitution article I, section 31, which has been upheld in California courts. Id. California Constitution article I, section 31, was also introduced in Florida as the Florida Civil Rights Initiative (FCRI) in 2000 and overruled by the Florida Supreme Court, because it did not satisfy the requirements of the single subject rule and the title and summary were not clearly written. Advisory Opin. to Atty. Gen. re Pub. Educ., 778 So.2d 888, 892 (Fla. 2000) [hereinafter Advisory Opin]. Florida enforces the single subject rule more rigorously than California. Manduley v. Superior Court, 27 Cal. 4th 537, 586 (2002) (Moreno, J., concurring) [hereinafter Manduley].

The California Constitution states, "An initiative measure embracing more than one subject may not be submitted to the electors or have any effect." Cal. Const. art. II, § 8(d). The single subject rule was created in 1948 to avoid voter confusion and to avoid misleading a voter as to the overall effect of the proposed amendment. An initiative measure does not violate the single-subject requirement "if, despite its varied collateral effects, all of its parts are 'reasonably germane' to each other," and to the general purpose or object of the initiative. Brosnahan v. Brown, 32 Cal. 3d 236, 245 (1982) [hereinafter Brosnahan].

In addition, the California Supreme Court has held that as long as provisions of an initiative are "reasonably related to a common theme or purpose," the measure does not violate the single subject rule. Legislature v. Eu, 54 Cal. 3d 492 (1991). The single subject rule is applied to avoid "an unnatural combination of provisions…dealing with more than one subject that have been joined together simply for improper tactical purposes." Senate v. Jones, 21 Cal. 4th 1142, 1160 (1999) [hereinafter Senate]. In Senate, two measures were combined, reduction of legislative salaries and shifting reapportionment from the Legislature to the California Supreme Court. Id. Generally, the single subject rule is applied to prevent what is called "logrolling." Id. In his concurring opinion in Manduley, Justice Moreno took issue with much of the majority's analysis of the single subject rule and with the way the court has defined the rule in prior case law. Manduley, 27 Cal. 4th at 585. Justice Moreno stated that cases have "employed a liberally interpreted 'reasonably germane' test rather than a test designed…to 'eliminate the possibility' of voter confusion caused when 'improper emphasis is placed upon one feature and the remaining features [are] ignored.'…In so doing, this court has come close to rendering the single subject rule meaningless." Id. at 586-587 (Moreno, J., concurring).

Justice Moreno continues that "while the Florida Supreme Court's interpretation of its own single-subject rule may be somewhat overly stringent for California, some kind of reasonable middle ground between that court's rigor and this court's laxity seems in order." Id. at 587-588. Justice Moreno asserted that this would require "that an initiative's various measures are 'reasonably interrelated and interdependent, forming an interlocking 'package' designed to accomplish the initiative's purpose." Id. at 588-589.

In contrast, the Florida Supreme Court uses a different standard for the single subject rule and has enforced the rule rigorously where it concerns initiatives. Id. at 587. For example, the FCRI, the initiative which was identical to California's section 31, was overruled in Florida courts because it was said to violate the single subject rule. Advisory Opin., 778 So.2d at 892. Ward Connerly, who had already spearheaded successful drives in California and Washington State for the initiative, had offered four alternatives to be put on the ballot in Florida, assuming that one of them would pass muster and be allowed to go to the voters. Rod Thompson, Justice and democracy are not always synonymous (May 25, 2002) (on file with Cal. Initiative Review, McGeorge School of Law). However, all four were struck down by the Supreme Court. The court held that the measures violated the single subject rule, because each one would ban racial preferences in public education, contracting and employment. The court further ruled that public education, contracting and employment were each viewed as distinct subjects. However, three of the seven justices chose not to explain why the measures did not pass muster. Advisory Opin., 778 So.2d 888.

The single subject rule ensures that each measure succeeds or fails on its own merits. Manduley, 27 Cal. 4th at 585. The RPI does not appear to violate the single subject rule, according to the long history of previous California court rulings. The goal of the RPI is to expressly prohibit the practice of state and local governments from classifying individuals by their race. Although the prohibition is in the areas of education, employment and contracting, the common theme and purpose of the RPI is to prohibit classification by race. The RPI does not seem any broader than either California's section 31 or Florida's FCRI. However, it is clear that the RPI would not pass muster in a court such as Florida, which applies a stricter single subject rule.

VI. Public Policy Considerations

A. Proponents

Proponents of RPI include the American Civil Rights Coalition (ACRC): Ward Connerly, Chairman of ACRC, Kevin Nguyen, Executive Director of ACRC; California Congress of Republicans and California Federated Republican Women. Proponents assert that (1) the California government must respect our right to racial privacy and should not be asking about such inherently private matters, (2) race classifications have wreaked havoc throughout history from the slave trade to the Holocaust, (3) race classifications are dividing citizens today because race classification focus on what divides us rather than what unites, (4) race classifications do not solve California's social ills because a person's skin color does not determine how well he can read, how much money he has, or how hard he works, and (5) race classifications are artificial. In the past thirty years, the number of race classifications has increased from five to sixty-three; 126 if you include ethnicity. Top 5 Reasons To Vote For RPI (May 21, 2002) (on file with Cal. Initiative Review, McGeorge School of Law).

According to the ACRC, through anti-miscegenation laws, many states forbade two people of different races from marrying. The Racial Privacy Initiative: A reader's guide, (May 21, 2002) (on file with Cal. Initiative Review, McGeorge School of Law). The U.S. Supreme Court struck down these laws in Loving v. Virginia, 388 U.S. 1 (1967) [hereinafter Loving]. After Loving, the number of marriages between people of different races increased dramatically, especially in California. The Racial Privacy Initiative: A reader's guide. People were no longer prevented from marrying because of race. Id. Today, more California children are born to parents of different races than are born to two black parents. Id. Furthermore, the number of people declining to state their race has also increased since section 31 passed in 1996 and banned race preferences. This was evidenced by a double in the number of applicants to the University of California who declined to state their race after section 31 passed. Id. However, these studies do not indicate whether the increase includes white Californians who are refusing to state their race. Id. Nevertheless, the increase in Californians not wishing to state their race is confirmation of the fact that many believe that the state should not be asking about race. Id.

Proponents of the RPI claim opponents try to mislead voters about the effects of the RPI on public health, medical research and treatment. Opponents contend the RPI will wipe out all information about disease among certain racial groups. Ward Connerly, ACRC's Chairman, responds to opponents by stating, "This is an outrageous, deliberate attempt to mislead voters, but we are quite confident that the California electorate will see through these scare tactics." Outrageous claims about the effects of RPI on public health (May 21, 2002) (on file with Cal. Initiative Review, McGeorge School of Law). Further, Kevin Nguyen emphasizes, "The initiative clearly states the 'otherwise lawful classification of medical research subject's and patients shall be exempt from this section'…another compelling, commonsensical exemption covers medical research and treatment…voters and reporters who take the time to read this straightforward initiative will see through this charade as one of the few desperate options RPI opponents have to prolong these arbitrary, inconsistent and unreliable race boxes…furthermore, it's obvious that the government is not the only source for public health information, and RPI affects only state and local government." Id.

Shelby Steele, a psychology professor at Stanford University states, "In responding more to racism than to poverty, America not only made racial disparities profitable but also generated a vast civil-rights grievance industry that has been far more obsessed with finding disparities than with helping people overcome deprivations." Shelby Steele, Making Colorblindness a Reality (May 23, 2002) (on file with Cal. Initiative Review, McGeorge School of Law). Steele further states, "I like the new personal freedom here, but I like even more the fact that it transforms a black fourth grader who can't read into simply a fourth grader who can't read. It goes toward lifting the veil of race from deprivation." Id.

Kevin Nguyen, Executive Director of ACRC, states the RPI has much strength, one of them being that it is clear in its language. Telephone Interview with Kevin Nguyen, Executive Director of ACRC (June 7, 2002). "The strength of RPI is the relatively short length of its text and that it is easily readable in the verbiage that is used, and that was purposeful for an initiative that is a first of its kind in this country. We wanted individuals to read and make up their own mind… they will see how much sense it makes. It is not radical and contains sufficient safeguards toward a color blind government which we were promised with Proposition 209, which we have yet to achieve." Id.

B. Opponents

Opponents of the RPI include the American Civil Liberties Union, National Association for the Advancement of Colored People, Mexican American Legal Defense Fund, San Diego County Bar Association, Trial Lawyers, National Lawyers Guild and Bruce Cain, Director of the Institute of Governmental Studies at UC Berkeley. Opponents include the same groups who opposed Proposition 209, which outlawed race preferences and was approved as section 31 of the California Constitution article I by California voters in November 1996. Opponents argue that (1) data on race helps us measure how far we have come in eliminating differences in health status, (2) "one-size-fits-all" health campaigns do not work in California because it is one of the most racially diverse populations in the country, (3) data collection on race should be improved, not eliminated, in order to get a better understanding of health, beliefs and practices of California's diverse population, (4) race is nothing to be ashamed of or to be kept private, because data can only help us in tracking and getting rid of the multiple burdens of poor health, poverty, and racial discrimination that many people in California bear. National Lawyers Guild, San Francisco Bay Area Chapter. Stop Ward Connerly's "Racial Privacy Initiative" (last accessed Sept. 2, 2003).

Bertram H. Lubin, M.D., Director of Medical Research at Children's Hospital Oakland Research Institute, states that he finds the RPI "unconscionable." Dr. Lubin expresses concerns with addressing the needs of children who suffer health consequences associated with race and that the RPI would prevent collection of the data. Letter from Bertram H. Lubin, M.D. to Jan T. Liu, Asian & Pacific Islander American Health Forum, National Lawyers Guild, San Francisco Bay Area Chapter (last accessed Sept. 2, 2003).

According to Clifford Rechstschaffen, a professor at Golden Gate University School of Law, "What the proposed initiative really keeps private is information about existing racial inequalities in every area from health to education to profiling - information that is critical to know if we are to address crucial public health, education and environmental issues, and one day become a world where race truly doesn't matter. That's why the initiative should more accurately be dubbed the "Racial Ignorance Initiative." Clifford Rechstschaffen. Why race still matters < http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2002/03/28/ED8311.DTL > (last accessed Sept. 2, 2003).

Bruce Cain, Director of the Institute of Governmental Studies at the University of California, Berkeley, states, "It is bad public policy to deny government agencies information to assess whether policies hurt or help members of different racial groups or genders. You're never better off being ignorant, you're always better off knowing the facts…and even if you're opposed to affirmative action you shouldn't be opposed to knowing facts." Telephone interview with Bruce Cain, Director of the Institute of Governmental Studies at the University of California, Berkeley (June 7, 2002).

VII. Conclusion

The RPI will be on the ballot in California's special election on October 7, 2003. According to the legislative analyst's office and Ward Connerly, Proposition 54's author, the measure is largely symbolic. Steven Magagnini, Proposition 54 Prompts Debate on Racial Data, Sacramento Bee A1 (Aug. 31, 2003). Moreover, the exemptions and ambiguity will continue to allow data collection and blow "bazooka-sized holes" in the measure. Id.

Results from recent polls concerning the RPI appear to be conflicting. According to a non-partisan field poll conducted on August 19, 2003, support of the measure appears to be slipping. Beth Fouhy, Poll finds support for California's 'Racial Privacy Initiative' slipping (last accessed Sept. 2, 2003). The poll discovered the RPI was supported by forty-six percent of the voters, compared with fifty percent in July. Id. Opposition of the measure appeared to be increasing with thirty-five percent currently in opposition, compared to twenty-nine percent last month. Id. The remaining nineteen percent were undecided. Id. Data from the poll was collected in a telephone survey of 448 likely voters contacted between August 10-13, and had a margin of error of five percentage points. Id.

However, a more recent poll, the 2003 Multilingual Survey of California Voters [hereinafter Multilingual Survey] released on September 25, 2003, shows the RPI as succeeding, particularly among people of color. Stephen Magagnini, Poll bucks prior surveys, sees Prop. 54 winning (last accessed Sept. 27, 2003). Described by its authors as the "most comprehensive survey of voters of color ever conducted in California," the poll shows Latino voters supporting the RPI by the greatest proportion, forty-six percent to thirty-three percent. Id. In addition, forty-two percent of Asian Americans and forty-one percent of African Americans favor the RPI, in comparison to thirty-one percent of whites. Id. Moreover, the Multilingual Survey found that many voters are either uninformed or undecided about the RPI. Id.

As the election nears, it is likely the RPI will gain more public-wide attention due to its controversial nature in regards to race and ethnicity. If the RPI is passed in California, it would be the first of its kind in the country and may lead other states to follow suit in the near future.